Threats are not protected speech, but defining what constitutes a threat has been problematic, particularly when it comes to online speech. We start with a look at threats against the US president, beginning with a 1798 prosecution for threatening John Adams, and leading up to the passage in 1917 of the first federal legislation against threatening the president. We will look at WW I-era prosecutions for threatening the president, leading up to a 1969 Supreme Court decision, Watts v. US, distinguishing true threats from protected political speech. And we conclude with two cases of online threats: the prosecution of Anthony Elonis for posting threats on Facebook, and a case where two tourists were denied entry to the US because of joking tweets that were treated as threats by US Border Agents. We conclude that threats, like obscenity, remain unprotected speech, but defining what is and what is not a threat in any particular case remains a problematic, subjective decision.

Chapter 1 introduces the argument that mens rea, or guilty mind, was central to medieval English jurors’ understandings of guilt and innocence and also central to the meaning of the word “felony” itself. After exploring competing etymological theories, including those of Edward Coke, Henry Spelman, William Blackstone, and Jeremy Bentham, the chapter argues in favor of Coke’s interpretation, tracing the meaning of felony to its root in the Latin fel, or gall, a bodily humor associated with bitterness and, by analogy, wickedness. By demonstrating the survival of a feudal connotation of felony in England, and a crime-related connotation in Normandy, the chapter also emphasizes the cross-channel exchange of ideas and downplays the English exceptionalist narrative that has dominated earlier discussions of the meaning of felony.

Chapter 7 turns to the broader issue of felony judging. Methodologically, the chapter relies more heavily on extra-legal sources, both religious and more purely literary, due to the limited discussion of approaches to decision-making by justices and juries within legal records. The chapter emphasizes the dangers involved in the act of judging but also suggests that emphasis on the dangers can obscure the prosaic nature of judging in medieval England. Despite concerns with the Last Judgment, medieval culture embraced prudential judgment as a routine fact of life. One finds medieval English men comfortably handing down verdicts in a wide range of disputes, felony cases being only the most extreme example due to the blood sanctions attached to them. The chapter considers how individuals reconciled their fear of judging with the expectation that they issue verdicts in routine and extreme cases alike, calling attention both to the ubiquity of judging in daily life and concerns over recidivism and crime that helped counterbalance fears of the Last Judgment.

Chapter 8 opens with the story of Erkenwald and the righteous pagan judge, inviting the reader to consider not only the complexities of defendants’ mental state, but also the mental state of persons engaged in the act of judging; this, too, would be subject to scrutiny at the Last Judgment. The chapter argues that medieval English felony law was based upon the equitable balancing of harsh justice and mercy; for a justice or jurors to stray too far in either direction could be condemnable. Drawing upon cautionary tales about judging, the chapter highlights themes that appear in medieval English literary and religious sources, including the notion that justices should not waver too greatly in decision-making, being swayed by money or ill advice; that justices should also not be too inflexible, but should rather reconsider a judgment that in hindsight appeared to be mistaken; and that justices and jurors should beware lest their decisions be informed by anger rather than measured consideration of the facts. The chapter illuminates the ways in which mind mattered not just for determining the culpability of criminal defendants, but also for assessing the culpability of individuals tasked with sending felons to the gallows.

Opening with a dramatic encounter between two angry lords and their opposing retinues of loyal men, Chapter 3 explores the role played by anger in medieval English legal and literary culture. Following a brief introduction to the field of the history of emotion, the chapter explores the etymology of several anger-related words in Latin, Anglo-Norman French, and Middle English. Using John Gower’s Mirour de l’Homme, the chapter demonstrates the complexities of medieval English understandings of the passion of anger. Moving from literature to legal texts, the chapter then explores the language used in the plea rolls to describe sudden anger, long-standing hatred, and other emotion-filled states. The chapter closes with another Gower tale in which the sin of incest is treated as secondary to the damnable sin of uncontrolled wrath.

The book’s conclusion opens with Thomas Smith’s late sixteenth-century description of a judge’s instruction to the jury and returns to the question of how jurors’ roles were understood at the time that England abandoned trial by ordeal in favor of jury trial for felonies. It returns to the questions that opened the book, including how one might explain the high felony acquittal rate and how central the issue of mind was to the determination of guilt and innocence in medieval English felony cases. Looking ahead to later treatise literature, the conclusion then considers how later treatise writers, namely Coke, Hale, and Blackstone, would describe mens rea in subsequent centuries as the common law of felony came to be articulated in writing. Returning to questions of methodology, the conclusion emphasizes again the intertwining of the legal and the literary in medieval English culture, focusing on a sermon that employed a defendant choosing a defense strategy as a metaphor for the importance of confession and contrition. The book concludes with a restatement of its core claim: that issues of mind pervaded medieval English jurors’ understandings of the nature of guilt and innocence.

The introduction opens with the plaintive cry of a medieval English outlaw bemoaning the uncertainty of the common law. It then situates the book within the broader history of the concept of mens rea and describes the methodology to follow, with a particular emphasis on the juxtaposition of legal and literary texts. A summary of sources is followed by a brief introduction to the Anglo-Saxon and Angevin antecedents to jury trial for felony and a description of the shift from ordeal to jury trial. After a brief chapter summary, the introduction provides a primer in medieval English felony procedure geared toward readers not already familiar with medieval English criminal law. Using an invented homicide narrative, the introduction outlines the various paths a person accused of felony might choose in the aftermath of an alleged crime, as well as the different avenues open to those inclined to prosecute. While some of this introductory material will be too rudimentary for experienced historians of the common law, this basic foundation makes the book accessible to a broader audience.

In order to explore how juries sorted the guilty from the innocent, Chapter 6 compares and contrasts the rankings of sins and crimes in medieval English legal, religious, and literary texts. It demonstrates the way in which sins were commonly divided into offenses of thought, speech, and deed, and explores how theologians and others understood the importance of volition or free will in aggravating or mitigating the severity of an offense. The chapter explores the treatment of theft and homicide in legal treatises and literary and penitential texts as well in order to make sense of how juries determined who should walk free and who should hang for such offenses.

Chapter 2 relies upon descriptions of what jurors found not to be felonious to draw conclusions about the meaning of felony in the medieval English legal context. Perhaps because the law was not heavily theorized, or perhaps because these are complex matters with which we still struggle in modern jurisprudence, medieval English felony law was tested by particular circumstantial elements that made a simple guilt or innocence determination difficult for jurors to reach. The chapter’s discussion of the paradigm of felony relies primarily on analysis of the categories of accident, self-defense, insanity, infancy, and duress. This paradigm, unmistakably influenced by notions of mind rather than reflecting a mere category of criminal acts, might be summarized as follows: a crime involving deliberation and rationality, the exercise of a person’s will in the absence of countervailing necessity, and an act that was wrongful and perhaps essentially wicked. Surely not all felonies fit this paradigm, but a pattern does emerge from a close reading of the plea rolls alongside literary texts.

Having encountered the manifold ways in which anger and related passions are employed in the plea rolls in Chapter 3, Chapter 4 then situates those legal texts within their broader cultural context, including the notion of the Last Judgement as the dies irae, or day of ire. Acknowledging that anger could be viewed in some contexts as a commendable emotion, the chapter then turns to the many reasons why confessors’ manuals and popular literary texts cautioned against cultivating anger in one’s personal life. For example, the chapter explains how anger was perceived to separate a person from his or her capacity to reason and how anger might escalate from thoughts to words to violent actions if allowed to develop into habit. The chapter then closes with some reflections on the nature of provocation in the medieval English felony context.

Focused on confession, Chapter 5 opens with a vignette in which a royal justice prods a first-time criminal defendant to confess to being a horse thief. The chapter argues that medieval English culture was imbued with the practice of confession, which occurred not only in the ecclesiastical context but was also a central part of felony procedure. Moreover, it demonstrates that the priest-confessor’s art of circumstantial inquiry, designed to ensure that a person confessed his or her sins fully to receive the appropriate penance, was adapted and adopted by the king’s coroners, who undertook an inquiry into the facts underlying homicide offenses. Downplaying the English exceptionalist narrative of the diverging paths in criminal procedure in England and continental Europe after Lateran IV, the chapter emphasizes the central role played by confession in medieval English felony procedure.